Johns v Hamilton City Council - [2022] NZHC 379

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

CIV-2019-419-222

[2022] NZHC 379

BETWEEN
BRYCE JASON JOHNS

Plaintiff

AND

HAMILTON CITY COUNCIL

First Defendant

(continue over page)

Hearing: 10 – 26 May 2021

Appearances:

B Easton and A Sales for Bryce Johns

P Robertson and S Mautner for Hamilton City Council Garth Davey in person

A Foster for Elite Coastal Developments Limited, Daniel Gujer and Hamish Stewart
Simon Bell in person

D Shore and A Hong for Next Level Roofing Limited and Ross Cameron

Judgment:

7 March 2022

Reissued:

13 June 2022

JUDGMENT OF HARLAND J

This judgment was delivered by me on 7 March 2022 at 3:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar Date……………………………..

Counsel/Solicitors: Grimshaw & co, Auckland Heaney & Partners, Auckland Foster & Milroy, Hamilton McCaw Lewis, Hamilton
Norris Ward McKinnon, Hamilton Copy to: S Bell

JOHNS v HAMILTON CITY COUNCIL [2022] NZHC 379 [7 March 2022]

GARTH WARWICK DAVEY
Second Defendant

EVOLVE ARCHITECTURE LIMITED
First Third Party

JAMES PARROTT
Second Third Party (Discontinued)

MARK and SUSAN BOOTH
Third Third Party (Discontinued)

ELITE COASTAL DEVELOPMENTS LIMITED
Fourth Third Party

DANIEL GUJER
Fifth Third Party

HAMISH JOHN STEWART
Sixth Third Party

WESTGATE FOR ROOFING LIMITED
Seventh Third Party

CONCEPT PLASTERING LIMITED
Eighth Third Party

SIMON BELL
Ninth Third Party

CIV-2020-419-153

BETWEEN HAMILTON CITY COUNCIL
Plaintiff

AND JAMES PARROT
First Defendant (Discontinued)
ELITE COASTAL DEVELOPMENTS LIMITED
Second Defendant
DANIEL GUJER
Third Defendant
HAMISH JOHN STEWART
Fourth Defendant
WESTGATE FOR ROOFIING LIMITED
Fifth Defendant (Discontinued)
CONCEPT PLASTERING LIMITED
Sixth Defendant
SIMON BELL
Seventh Defendant (Discontinued)
NEXT LEVEL ROOFING LIMITED
Eighth Defendant
ROSS CAMERON
Ninth Defendant
GARRY ROSS RICHARDSON
Tenth Defendant
BELL BUILDERS LIMITED
Eleventh Defendant

TABLE OF CONTENTS

PART ONE: INTRODUCTION.................................................................................... [1]

An overview of the claims..................................................................................... [2]

The issues............................................................................................................. [21]

PART TWO: BACKGROUND FACTS....................................................................... [22]

PART THREE: LEGAL PRINCIPLES......................................................................... [68]

The claim in negligence (the Johns proceedings)................................................ [69]

The claim under the Law Reform Act (the Council’s proceedings) [85]

PART FOUR: THE alleged DEFECTS......................................................................... [87]

Overview............................................................................................................. [87]

The expert evidence generally............................................................................. [95]

Generic expert evidence about council practices  [98] Specific challenge to Mr Gray’s expertise about council practices  [104] Was the wrong test applied by Mr Gray?  [107]
Methodology challenges to Mr Gray’s evidence  [113]
General observations about expert evidence  [115] The defects generally............................................................................................................. [116]
Water ingress through the top of the building (Defects 3-5).............................. [119]
Defect 3: poorly formed roof metal parapet cap flashing junctions (unsealed gaps, laps not fully sealed, no under-flashings)  [122]
Conclusion in relation to Defect 3  [158]
Defect 4: no provision to seal or flash rivet penetrations through the roof metal parapet flashings.  [161]
Defect 5: poorly formed parapet to wall junctions  [181]
Overall conclusion about Defects 3 – 5  [212]
Water ingress through the deck (Defects 6 and 7)............................................. [214] Defect 6: incorrectly installed deck membrane to wall upstands       [217] Defect 7: poorly installed balustrade fixing  [241] Water ingress around the windows (Defect 1)........................................................................................................................... [271]
Defect 1: poorly sealed or unsealed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 379
Decision Date: 7 March 2022

CaseChat Overview and Summary

The High Court of New Zealand, Hamilton Registry, heard a case involving a dispute over a property at 896A River Road, Hamilton. The property owner, Bryce Jason Johns, sued the Hamilton City Council and Garth Warwick Davey, the developer and builder, for damages due to weathertightness defects in the dwelling house constructed on the property. The Council and Davey, in turn, sought contribution from other parties they believed were responsible for the defects.

The court found that several defects contributed to water ingress and damage to the internal building elements. The most significant defects were related to the roof parapet flashings, the deck membrane, and the balustrade fixings. The court held the Council liable for its failure to ensure the building consent plans included specific details about the construction of the roof parapet flashings, and for not identifying defects during inspections. Davey was found liable for his role as the developer and builder, particularly for not ensuring the underflashings were installed and for not properly managing the subcontractors. The court apportioned liability as follows: Davey 40%, the Council 25%, NLR 20%, ECDL, Mr Gujer, and Mr Stewart 10%, and Concept Plastering 5%. The court awarded Mr Johns damages for the losses incurred, interest, and general damages for stress and inconvenience. Costs were reserved to be addressed by way of memoranda.

Orders